Do I Have to Probate an Estate if There is No Will?
Losing a loved one is difficult, and that process can be further complicated by lengthy legal proceedings to determine the fate of that loved one’s estate. Many people want to avoid probate courts whenever possible. However, when someone dies without a will, the decedent’s estate will likely automatically be subject to the probate process.
First, the term “probate” describes the process that a court will go through to organize a decedent’s assets, manage their debts, and distribute their estate. Typically, this process is completed according to the decedent’s will and that state’s Probate Laws. A will is a written device that outlines how a decedent, also called a Testator, would like their property and other remaining assets to be distributed upon their death. But not all of the decedent’s property is subject to the probate process, even if there is a valid will in place. Some assets have predetermined beneficiaries that will pass to those recipients upon the death of the decedent. Some examples of these assets include: bank accounts, life insurance policies, trusts, and jointly owned property.
In contrast, a person dies intestate when they die without a valid will in place. Each state has their own laws outlining intestate succession that will guide how an estate will be divided. It is important to note, however, that assets with predetermined beneficiaries are not subject to intestate succession.
So, what happens when an individual dies without a will? Their estate will likely go through the probate process, only without the guiding structure of a will. Instead, the state’s laws of intestate succession will determine how that estate will be administered and who it will be administered to.
When the decedent dies intestate, the court’s role in a probate process is to ensure that the decedent’s estate is properly and legally administered. Often, the court’s role in this process is helpful when disputes arise among potential heir’s regarding the decedent’s property. The court can serve as a nonbiased party to fairly decide what assets, if any, each heir will inherit.
To begin a probate process, the court must first appoint an administrator or personal representative. Generally, the person who first petitions to the probate court will be appointed by the court to fill this role. The administrator has the same role and duty as an executor of a will, however unlike an Executor, they were not specifically named by the decedent to serve in this role. Some duties of the personal representative include: evaluating the value of decedent’s estate, paying the decedent’s remaining debts and taxes, and locating the decedent’s assets.
Once a personal representative is appointed, the court will determine the decedent’s heirs at law. Typically, a decedent’s surviving heirs would be the recipient of their estate. Each state’s intestacy laws outline which heirs receive their estate dependent upon their relationship to the decedent and which other heirs are surviving. While intestacy laws vary from state to state, a general chain of succession of the decedent’s estate would be to the surviving spouse, followed by surviving children, parents, or other relatives. After determining who will inherit the estate and which assets each heir will inherit, the court concludes the probate process by issuing a court order that outlines how the estate will be distributed.
While the intestate probate process has some benefits, one major drawback to the process is the decedent’s inability to control who will inherit their estate. In some cases, the heirs that a decedent would include in their will are the same heirs who would inherit at law. However, that is not always the case. Having a will is likely the best way to ensure that property is transferred to the desired friends and family upon the death of the decedent.